Residence Requirement for Assistant United
States Attorneys Under 28 U.S.C. § 545(a)
Under 28 U.S.C. § 545(a), Assistant United States Attorneys must physically reside in or
within 25 miles of the district that they serve.
November 20, 2012
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS
Federal law provides that “[e]ach assistant United States attorney shall
reside in the district for which he or she is appointed or within 25 miles”
of that district. 28 U.S.C. § 545(a) (2006). In 1979, we interpreted the
phrase “shall reside” to require the “physical presence” of Assistant
United States Attorneys (“AUSAs”), reasoning that the ordinary meaning
of the word “residence” as well as the legislative history established
Congress’s intent to regulate where AUSAs could physically live while
serving their districts. Assistant U.S. Attorney—Residence Requirement
(28 U.S.C. § 545), 3 Op. O.L.C. 360 (1979) (“1979 Opinion”). You asked
us to revisit the 1979 Opinion’s reading of section 545(a) in light of
advances in technology that would make it possible for AUSAs to work
remotely while living outside their districts. 1 Specifically, you asked
whether maintaining a “virtual presence” in a district through a telework
arrangement could satisfy the section 545(a) residence requirement.
Although we appreciate that telework capabilities now allow some
AUSAs to perform their duties even while stationed more than 25 miles
from their districts, we believe that the 1979 Opinion correctly interpreted
the statute and that AUSAs must physically reside in or within 25 miles of
the district that they serve. 2
1 See Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel,
from Jay Macklin, General Counsel, Executive Office for United States Attorneys (Oct. 1,
2012) (“EOUSA Letter”).
2 The 1979 Opinion interpreted an earlier version of the statute, which required all
AUSAs, save those serving in the District of Columbia and the Southern District of New
York, to reside within their appointing district. See 28 U.S.C. § 545(a) (1976). The
current statute does not except AUSAs appointed for the District of Columbia and the
Southern District of New York from the residence requirement, but rather allows all
AUSAs, regardless of district, to live “in . . . or within 25 miles” of the district they
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36 Op. O.L.C. 237 (2012)
I.
Section 545(a) states in its entirety:
Each United States attorney shall reside in the district for which
he is appointed, except that these officers of the District of Colum-
bia, the Southern District of New York, and the Eastern District of
New York may reside within 20 miles thereof. Each assistant United
States attorney shall reside in the district for which he or she is ap-
pointed or within 25 miles thereof. The provisions of this subsection
shall not apply to any United States attorney or assistant United
States attorney appointed for the Northern Mariana Islands who at
the same time is serving in the same capacity in another district. Pur-
suant to an order from the Attorney General or his designee, a Unit-
ed States attorney or an assistant United States attorney may be as-
signed dual or additional responsibilities that exempt such officer
from the residency requirement in this subsection for a specific peri-
od as established by the order and subject to renewal.
The text indicates, in a number of ways, that Congress intended section
545(a) to impose a physical residence requirement. To start, the statute
focuses on where AUSAs (and U.S. Attorneys) must “reside”—a word
that generally connotes physically living in a particular place. See Web-
ster’s Third New International Dictionary 1931 (1993) (to reside is “to
dwell permanently or continuously: have a settled abode for a time: have
one’s residence or domicile”); Random House Dictionary of the English
Language 1648 (1987) (to reside is “to dwell permanently or for a consid-
erable time”); see also Black’s Law Dictionary 1423 (9th ed. 2009) (de-
fining residence as “[t]he act or fact of living in a given place for some
time”; “[t]he place where one actually lives, as distinguished from a
domicile”; and “bodily presence as an inhabitant in a given place”).
Beyond the use of the word “reside,” the way the statute marks the
bounds of the residence requirement also indicates that Congress intended
to regulate physical presence. AUSAs must reside in “or within 25 miles”
of the district they serve, and U.S. Attorneys for D.C. and for New York’s
serve. 28 U.S.C. § 545(a) (2006). Despite this change, the statute’s key phrase—which
restricts where AUSAs “shall reside”—has remained constant, and the 1979 Opinion’s
analysis is therefore relevant to the amended statute.
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Residence Requirement for Assistant United States Attorneys
Southern and Eastern Districts may live “within 20 miles” of their district.
28 U.S.C. § 545(a). By framing the residence requirements in terms of
permissible geographic ranges, Congress indicated that it was using the
phrase “shall reside” to specify where these federal attorneys must physi-
cally dwell.
Other parts of section 545(a) reinforce this understanding of the resi-
dence requirement. The statute does not apply to federal attorneys “ap-
pointed for the Northern Mariana Islands who at the same time [are]
serving in the same capacity in another district.” Id. Nor does it reach
anyone to whom the Attorney General assigns “dual or additional respon-
sibilities that exempt such officer from the residency requirement . . . for a
specific period.” Id. 3 If U.S. Attorneys and AUSAs could satisfy the
requirements of section 545(a) by maintaining a virtual presence in one
district while residing in another, these exceptions for those that take on
dual roles in different districts would not be necessary. See Corley v.
United States, 556 U.S. 303, 314 (2009) (A statute “should be construed
so that effect is given to all its provisions, so that no part will be inopera-
tive or superfluous, void or insignificant.” (internal quotation marks
omitted)). Based on this and the other textual indications discussed above,
we conclude that section 545(a) requires that AUSAs physically reside in
or within 25 miles of the district they serve. 4
3 Since 2008, Congress has prohibited the use of funds “for the salary, benefits, or ex-
penses of any United States Attorney assigned dual or additional responsibilities by the
Attorney General . . . that exempt that United States Attorney from the residency require-
ments of 28 U.S.C. 545,” effectively rendering the dual-responsibilities exception inappli-
cable to U.S. Attorneys. Consolidated Appropriations Act, 2008, Pub. L. No. 110-161,
div. B, § 215, 121 Stat. 1844, 1915 (2007); see also Consolidated and Further Continuing
Appropriations Act, 2012, Pub. L. No. 112-55, div. B, § 214, 125 Stat. 552, 620 (2011)
(same). By preventing U.S. Attorneys from taking on dual responsibilities that would take
them away from their home districts, this appropriations rider presumes that section
545(a) regulates physical presence and further reinforces our reading of the statute.
4 We would not read the residence requirement to apply to special attorneys appointed
under section 543 of title 28 of the U.S. Code, which authorizes “[t]he Attorney General
[to] appoint attorneys to assist United States attorneys when the public interest so re-
quires.” Even though special attorneys “assist” U.S. Attorneys, they are not the “assistant
United States attorney[s]” to whom section 545(a) refers. Rather, section 545(a)’s use of
the term “assistant United States attorneys” appears to be a reference only to attorneys
appointed under section 542, which provides that “[t]he Attorney General may appoint
one or more assistant United States attorneys.” (Emphasis added.) We draw support for
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36 Op. O.L.C. 237 (2012)
II.
The legislative history confirms that section 545(a) requires physical
residence. In 1896, when Congress first considered whether to authorize
the appointment of AUSAs (then “assistant district attorneys”), the draft
language did not include a residence requirement. Representative John-
son asked the bill sponsor whether assistants would need to be “actual
residents of the district” for which they are appointed. 28 Cong. Rec.
2464 (1896). When the sponsor said no, Representative Johnson offered
an ultimately successful amendment “for the purpose of imposing a
restriction in that regard,” commenting that he did “not think that there
ought to be anybody sent out to fill such positions in the State or Territo-
ry unless he lives there.” Id.; see also Act of May 28, 1896, ch. 252, 29
Stat. 140, 181 (providing that assistant district attorneys “must be resi-
dents of the district for which they are appointed”).
Floor statements from the debates on subsequent amendments to the
statute similarly indicate that Congress has long understood the statute
to regulate physical presence. As your letter notes, EOUSA Letter at 2,
the 1979 Opinion relied in part on two statements made during the 1941
debate on amending the statute, the first of which explains that the then-
current version of the statute required attorneys to “move into the Dis-
trict and live in the District,” and the second of which states that it was
in “the best interest of the people whom [AUSAs] serve to require
[AUSAs] to live among such people during their tenure of office.” See
1979 Opinion, 3 Op. O.L.C. at 361; 87 Cong. Rec. 3269 (1941) (state-
ments of Reps. McLaughlin and South). And when Congress considered
another amendment in 1979, the sponsor described section 545(a) as “a
codification of the policy that law enforcement officials should reside in
the same community in which they enforce the law.” 125 Cong. Rec.
4164 (1979) (statement of Rep. DeConcini). We have found nothing in
the legislative history to suggest that Congress has ever understood the
residence requirement as anything other than a limit on where U.S.
that reading from floor statements made by the sponsor of the original AUSA residence
requirement. When asked whether the residence requirement would apply to “a special
assistant,” the amendment’s sponsor responded that the restriction was “only for regular
deputies, not the special deputies,” and that the Attorney General “has a right to employ
special deputies at any time.” 28 Cong. Rec. 2465 (1896) (statement of Rep. Johnson).
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Residence Requirement for Assistant United States Attorneys
Attorneys and AUSAs may physically live, and we do not think the
technological advances that make telework an option for some AUSAs
undermine the current relevance of Congress’s stated purpose.
III.
We recognize that permitting remote work arrangements like the one
you describe in your letter (through which an appellate attorney sought to
telework for two years while his spouse completed an overseas assign-
ment) could assist the Department’s retention efforts and alleviate poten-
tial difficulties arising from the hiring freeze.* And we are mindful that
current technology could “ensure the availability” of at least some attor-
neys—and thereby achieve one of the important “purpose[s] of the resi-
dency requirement”—in ways that were not contemplated when Congress
passed the first residence requirement in 1896, or even when we wrote the
1979 Opinion cited above. See 1979 Opinion, 3 Op. O.L.C. at 361. We
nevertheless believe that the text and legislative history require us to
adhere to the 1979 Opinion’s analysis—an analysis that is consistent with
other past readings of both section 545(a) and a similar residence re-
quirement for circuit judges. See Memorandum for Philip H. Modlin,
Director, Executive Office for United States Attorneys, from Mary C.
Lawton, Deputy Assistant Attorney General, Office of Legal Counsel,
Residence Requirement for U.S. Attorneys at 1 (July 11, 1974) (“Lawton
Memo”) (considering section 545(a) and suggesting that “it is accepted
almost without question that a public employee can be required to live in
the district in which he works”); Memorandum for Dennis Mullins, Depu-
ty Assistant Attorney General, Office of Legal Policy, from Theodore B.
Olson, Assistant Attorney General, Office of Legal Counsel, Re: Residen-
cy Requirements for Circuit Judges at 4 (Sept. 26, 1984) (advising that a
judicial nominee “establish his physical presence in California” to comply
with the requirement under 28 U.S.C. § 44(c) that a circuit judge “be a
resident of the circuit for which appointed”); E-mail for Kurt Didier from
* Editor’s Note: The Department of Justice instituted a hiring freeze from 2011 to
2014 in response to budgetary problems. See Dep’t of Justice, Press Release, Attorney
General Holder Announces Justice Department to Lift Hiring Freeze (Feb. 10, 2014),
https://www.justice.gov/opa/pr/attorney-general-holder-announces-justice-department-
lift-hiring-freeze.
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36 Op. O.L.C. 237 (2012)
Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: US Atty Residency Req’t (Aug. 2, 2002, 10:46 AM) (adher-
ing to the 1979 Opinion’s interpretation of “reside” to conclude that
“presence in the district seems to meet the statutory purpose”).
This is not to say that a U.S. Attorney could never approve an
AUSA’s request to telework away from the district in which he or she
serves (and outside the 25-mile radius that the statute permits) for a
reasonable period of time, subject to any requirements of the Depart-
ment’s Telework Policy. See DOJ Policy Statement 1200.01 (approved
on July 20, 2012), http://www.justice.gov/jmd/hr/doj1200-01.pdf. The
residence requirement, we have said, “contemplates a home in which
[AUSAs] are present most of the time,” not all of the time. Lawton
Memo at 1. So while we do not think that an AUSA telecommuting
overseas for a period of two years could fairly be considered “present
most of the time” in his home district, other, short-term telework ar-
rangements would be permissible under the statute, as long as the AUSA
usually has a physical presence in or within 25 miles of the appointing
district.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
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